Annie Ferguson, curator of The Fluid Raven, sent along an interesting question:

Could you help me out with an appropriation dilemma? How are artists using recordings of poets like Plath and Oliver in their videos without being illegitimate? Is there a place where these poems are free to grab and use?

I’m a filmmaker/poet and wanted to create cinepoems with the words of famous poets, but I ran into copyright infringement. Yikes. I’d love to know more about it though, because I think it’s important for filmmakers to share poets’ work in a new way.

I asked Annie’s permission to share her question here. My off-the-cuff response was that if we’re not getting permission from the copyright holders, we are leaving themselves open to being sued for copyright infringement. (Or at least getting a take-down notice under the DMCA). That said, a liberal interpretation of the Fair Use provision in U.S. copyright law might find that envideoing a poem is sufficiently transformative to pass muster. The Center for Social Media’s Code of Best Practices in Fair Use for Online Video suggests, for example:

Unlike many traditional creator groups, nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine. That said, our goal here is to define the widely accepted contours of fair use that apply with equal force across a range of commercial and noncommercial activities, without regard to how video maker communities’ markets may evolve. Thus, the principles articulated below are rooted squarely in the concept of “transformativeness.”

In fact, a transformative purpose often underlies an individual creator’s investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. Images and sounds can be building blocks for new meaning, just as quotations of written texts can be. Emerging cultural expression deserves recognition for transformative value as much as more established expression.

More professional filmmakers will of course make an effort to contact rights holders. In some cases, they may be asked to pay quite a lot of money. But an even more insurmountable difficulty may be finding out who holds the rights in the case of poets who are long dead and out-of-print. If you’re using a translation, you need permission from both the translator and (I think) the original author. I’ve gotten around that on a couple of occasions by doing my own translations and hoping the poets’ heirs weren’t litigious. (Needless to say, the Fair Use provision only applies to poets who were U.S. citizens.)

Another way out of this dilemma might be to forget about the big names and look for poets who apply Creative Commons licenses to their work (the kind that don’t include the phrase “no derivative works,” abbreviated “ND” in the short form of the license), or simply work with living, web-active poets who are quick to respond and unlikely to ask for money. And of course an ever-growing number of classic poems enter the public domain every year. But fortunately (from my perspective as a reader and viewer) there are good filmmakers with a bit of an outlaw mentality who shoot first and ask questions later. Without them, we might not have any good videopoems for poets like Plath and Oliver.

Have you ever broken copyright to make a filmpoem, cinepoem or videopoem? Are there any circumstances under which you think it might be permissible?